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Rediscovering Facebook: The Role of Facebook in Pennsylvania's Courts

College alumni in their mid to late twenties remember the good old days
when Facebook used to be exclusive for only those with a valid college
e-mail address. Back then, Facebook consisted of a single page with just
the basics: a profile picture, gender, birth date, a friend list, a wall,
a status log, maybe a photo album or two. Each college was its own network
and Facebook advertised itself as a networking site. As college kids got
to know their classmates and dorm mates, they added these new people to
their friends list. Facebook then kept everyone up-to-date with a news
feed that provided constant status, picture, and profile updates.

Facebook proved to be a successful venture into the relatively new world
of social media. It continued to grow, opening its doors to community
colleges, then to corporations, and eventually to anyone with an e-mail
address. It became so popular that “Facebook” became a verb.
For example: “Why don’t you Facebook her to find out what
she’s doing tonight?” or “Is he single? Facebook him
and find out.” When Facebook became an application on smart phones,
users became even more “connected.” The Facebook application
allows users to “check-in” to any place, allowing the phone’s
GPS to locate these users and broadcast where they are to the world. The
application can also utilize a smart phone’s camera to snap a picture
and instantly upload it. Facebook has continuously upgraded its layout
to accommodate so much information. The latest upgrade is called the “Timeline,”
where a friend may search a user’s status updates, check-ins, and
uploaded photographs throughout the years. Facebook is basically an open
diary for anyone with the right privacy authorization to see.

Speaking of privacy, Facebook has had its share of privacy problems. Because
more and more people are willing to upload intimate and potentially embarrassing
material onto the internet, Facebook responded by creating increasingly
complicated and customized privacy settings. A user can become Facebook
friends with his parents and carefully finagle the privacy settings so
that Mom only sees pictures of him frantically chugging a cappuccino before
an exam or posting statuses that say “got an A on my history paper!”
rather than those pictures of him chugging beer through a funnel and statuses
that say “woke up in jail today…”

Facebook’s popularity has turned it into a powerful discovery tool.
Take, for example, the case of Mary. Mary was roughly rear-ended by Rob
and now claims that she is so injured that she can no longer partake in
life’s pleasures. Traditionally, Rob would send a private investigator
to take pictures of Mary out and about to see if her claims could be disproved.
Now, all Rob would have to do is access Mary’s Facebook page to
find pictures of her playing beach volleyball, looking tanned and healthy,
and there goes both her claim and her credibility.

The conflict arises when Rob tries to access Mary’s Facebook page
and is blocked by her privacy settings. Only Mary’s Facebook friends
are permitted to view her posted material. All Rob can see is her name
and profile picture which really doesn’t tell him anything. Rob
files a motion in a Pennsylvania court to compel discovery of Mary’s
Facebook page. What would be the outcome?

Since the dawn of the internet era, consumers have been repeatedly reminded
to never give out their passwords. Understandably, people bristle when
an opposing attorney demands their user name and password in order to
have unfettered access to something they thought was private. Yet, it
seems as though Pennsylvania discovery rules side with disclosure. Pa.R.C.P.
4003.1 allows a party to obtain discovery regarding any unprivileged matter
as long as it is somehow relevant to litigation. In McMillen v. Hummingbird
Speedway, Inc., 2010 WL 4403285, an argument was made in the Jefferson
County court that private Facebook material should be subject to a “social
network site privilege” based upon the belief that the plaintiff’s
postings were private communications between him and his friends.

The court shot this argument down by pointing out that the law disapproves
of privileged information so there could be no such thing as a social
network site privilege. In addition, Facebook’s own terms and privacy
policies say that it cannot prevent friends from reposting information
or Facebook operators from accessing that information, so it is unrealistic
to expect Facebook postings to be privileged. The McMillen court ultimately
ordered the plaintiff to give the defendant his Facebook username and password.

One way to approach Facebook disclosure is to ask the court to conduct an
in camera review of the private Facebook page in question. In Offenback v. L.M.
Bowman, Inc., 2011 WL 2491371 (M.D. Pa. June 22, 2011), the court ordered
the plaintiff to disclose his Facebook username and password then proceeded
to review the plaintiff’s Facebook page in chambers. This review
revealed that all of the relevant information the defendant needed had
already been displayed on the public portion of plaintiff’s page.
The court concluded that the plaintiff knew his Facebook page best and
could have produced the posts the defendant wanted without the court’s
help. On the other hand, the court in Zimmerman v. Weis, No. CV-09-1535
(Northumberland Cnty) determined that it would be an unfair burden on
the court if it had to go through the plaintiff’s Facebook page
to determine what is relevant and what is not. It ordered the plaintiff
to provide his Facebook username and password to the defendant.

In Luzerne County, a court refused to compel a plaintiff to give defense
counsel his username and password. The facts in Kalinowski v. Kirschenheiter
and National Indemn. Co, No. 6779 of 2010, (Luzerne Cnty.) involved a
plaintiff who was a bar owner with a Facebook page. When the defendant
demanded access to the page, the plaintiff claimed that the defendant
was only trying to embarrass him with pictures of the plaintiff in his
best party attire. The court denied the defendant’s Motion to Compel
without prejudice because the plaintiff’s public page did not reveal
anything that impeached the plaintiff. The court did also order that the
plaintiff refrain from deleting anything from his Facebook page to open
the door for future social media discovery.

It seems as though the trend in Pennsylvania is to allow a party access
to the opposing party’s Facebook page as long as something in the
public profile suggests that relevant information may be contained in
the private profile. Facebook postings may not only affect your relationship
with your friends and family, it may also affect the outcome of your case.
The world as a whole is still trying to sort out the role social media
plays in professional settings – classes are even beginning to be
taught on the topic. Although the rules on Facebook discovery are not
set in stone, what your parents and teachers tell you still remain true:
be careful what you post on Facebook!

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